Scottish Law Commission: 2009 Annual Report

The 2009 annual report of the Scottish Law Commission was published earlier this month. In the foreword to the last annual report SLC chairman, Lord Drummond Young, had raised concerns about the failure to implement SLC reports. He notes in his foreword this year a number of very positive developments within the devolved government and parliament including meetings with the Justice Secretary and minister for Parliamentary business, a meeting with the convener of the Justice Committee.

Lord Drummond Young welcomes these developments,

"Procedures are under consideration to increase the capacity of Parliament to deal with Scottish Law Commission Bills. At the same time the Scottish Government has announced its intention to engage in a process of formal consultation on our Reports on Succession, Damages for Psychiatric Injury, Damages for Wrongful Death, and Limitation. On the criminal side, our Report on Rape and Other Sexual Offences has been implemented in the Sexual Offences (Scotland) Act 2009. Finally, in the Criminal Justice and Licensing (Scotland) Bill that is presently proceeding through the Scottish Parliament three of our reports are included; these are the Reports on Insanity and Diminished Responsibility, Age of Criminal Responsibility and Crown Appeals. In addition, the Cabinet Secretary for Justice has agreed that it would be useful if, following the publication of our reports, the Government were to issue a statement of its position on our recommendations. This is excellent progress, and I look forward to seeing practical results from these changes."

Lord Drummond Young has, though, strong words for the UK government and its engagement with law reform projects with a bearing on Scots law.

"Unfortunately the desire shown by the Scottish Government to promote the reform of Scots law is not replicated at a United Kingdom level. In 2003, together with the Law Commission for England and Wales, we published a Report on Partnership Law. In Scotland there is an almost universal view that major reform of this area of the law is plainly necessary; the law is based on a statute 120 years old, and has failed to keep uptodate with modern commercial developments. The Report met with opposition from one section of the English legal profession, however, and the reaction of the Department of Trade and Industry (now the Department for Business, Innovation and Skills) was to decide that nothing should be done to implement the Report. This is not satisfactory so far as Scotland is concerned. In 2009 the Commission published a Report on Unincorporated Associations, another area of the law that is in serious need of reform. We have not yet had any reaction from the United Kingdom Government. If the devolution settlement is to work properly, however, it is vital that United Kingdom Departments should take their responsibilities to Scotland seriously.

"In view of the attitude of the Department of Trade and Industry to the reform of Scottish partnership law, I note with some concern a recommendation of the Calman Commission that the UK Insolvency Service (part of DBIS) should be made responsible for laying down rules to be applied by insolvency practitioners in Scotland as well as England and Wales; in effect this means the rereservation of certain parts of insolvency law. It is not clear precisely what is meant by this recommendation, but if it means that all legislation bearing on insolvency is to be reserved toWestminster, under the control of DBIS, the result would, I fear, be that the sensible reform of Scottish commercial law becomes impossible."

It is to be hoped that the UK government – when out of pre-election purdah – takes Lord Drummond Young's views on board. While the Scottish courts and practitioners are responding to modern commercial developments through changes in our systems of civil procedure and in practice, such changes will ill-serve clients if our commercial law ossifies.

On Lord Drummond Young's final point I am reminded of a hustings meeting prior to the devolution referendum where among the speakers was Nigel Griffiths (soon to stand down as an MP). At that point Mr Griffiths was the minister with responsibility for corporate insolvency, and I asked a question about insolvency and the devolution settlement. I was not reassured by a reply from the minister responsible indicating that there were no particularly Scottish aspects of insolvency law.